Canadian Employment Law Today

August 21, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Tracking the law on GPS surveillance Tracking vehicles for legitimate business purposes not a violation of employee privacy whether an employer's installation of GPS and engine monitoring technology THERE is no greater test of a parent's in company vehicles violated the privacy trust than when they first allow their rights of its mechanic drivers. teenage child to take the car out on their The system in question tracked two own. Not only are parents left to worry different types of data: real-time inforabout the safety of their child and the mation about the location and movephysical integrity of their vehicle, but ments of a service vehicle, and the they must also consider the potential lia- vehicle's engine status and operation. bility of having their child share the This second category included data streets with others. about distance travelled, speed, harsh Employers experience similar reser- braking, sharp acceleration and idling, vations entrusting a comas well as the time at pany vehicle to an which the ignition turned employee, particularly on and off. PRIVACY where the employee is The information genernew and untested and ated by the GPS system may spend the majority of her working was only viewed by the employer in day with little to no supervision. accordance with its GPS policy. Under To address this issue, many employ- the policy, data was not constantly moners have turned to a Global Positioning itored, but rather viewed only when the System (GPS) as a means of ensuring operation of a vehicle deviated from company vehicles are being driven accepted standards. safely and employees are where they The union filed a complaint with the should be. Deployment of a GPS in a privacy commissioner alleging the company vehicle is not illegal, but its use employer's GPS policy violated is not without controversy. Some employee privacy rights. The employer employee advocates argue it represents argued the GPS system collected "vehia breach of employee privacy rights. cle information," not "personal information," and was therefore not subject to GPS and employee privacy — scrutiny under PIPA; and the GPS syswhat's the issue? tem provided a number of legitimate A recent British Columbia decision benefits, including improved planning of sheds light on this issue in the context of route assignments, enhanced safety and that province's Personal Information security by proactively identifying Protection Act (PIPA), which regulates unsafe driving practices (rather than the collection, use and disclosure of per- waiting for complaints from the public or sonal information in the private sector. charges), more efficient scheduling of In Schindler Elevator Corporation, the vehicle maintenance, and the reduction B.C. Information and Privacy CommisContinued on page 6 sioner addressed the question of | BY ADRIAN JAKIBCHUK | AUGUST 21, 2013 In T h is I s s u e ASK AN EXPERT: Recouping used but unearned vacation • Unreported harassment CASES AND TRENDS: Metro cuts 'grazing' employee loose 2 3 CASE IN POINT: Parental duties not personal choice, require accommodation 4 YOU MAKE THE CALL: School caretaker suspended after charges 8 No need for warnings before firing worker on 'last chance' agreement AN ARBITRATOR has upheld the termination of a troubled worker who was on his second "last chance" agreement. The worker was employed with GE Hitachi Nuclear Energy Canada, an energy technology company. He was considered a hard worker, but he had problems with insubordinate and threatening behaviour, as well as attendance issues and other misconduct, for which he was disciplined multiple times to the point where GE drew up a last chance agreement. In July 2011, the worker's employment was terminated for "gross insubordination and threatening behaviour to his manager, which violated the last chance agreement. However, the union grieved the termination and negotiations led to another last chance agreement, which was signed on June 12, 2012. It was agreed GE had just cause to dismiss the worker, but they came to Continued on page 7

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